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d. Restoration of Status in Quo [§ 340] p 928

V. DEVISE OR TESTAMENTARY DISPOSITION [§§ 341-342] p 929
A. As Affecting Rights of Creditors [§§ 341-3412] p 929

1. In General [§ 341] p 929

2. Devise to Husband or Wife and Children [§ 3412] p 929
B. As Affecting Rights of Surviving Spouse and Children [§ 342] p 930

VI. ABANDONMENT, WAIVER, OR FORFEITURE [§§ 343-412] p 931
A. In General [§ 343] p 931

B. Dissolution of Family Relationship [§§ 344-349] p 931

1. In General [§ 344] p 931

2. Desertion [§ 345] p 933

3. Divorce [§§ 346-348] p 934

a. Effect on Husband's Right [§ 346] p 934

b. Effect on Wife's Right [§ 347] p 934

c. Effect on Rights of Children [§ 348] p 935

4. Separation by Agreement [§ 349] p 935

C. Abandonment of Homestead [ 350-3802] p 935

1. In General [§ 350] p 935

2. Removal from Premises [§§ 351-364] p 936

a. In General [§ 351] p 936

b. Removal without Intent to Return [§§ 352-354] p 936

(1) In General [§ 352] p 936

(2) Removal to Another State [§ 353] p 937

(3) Removal without Acquiring New Homestead [§ 354] p 938

c. Removal with Intent to Return [§§ 355-363] p 938

(1) In General [§ 355] p 938

(2) Absence Due to Necessity [§ 356] p 939

(3) Absence for Business Purposes [§ 357] p 940

(4) Absence for Education of Children [§ 358] p 941

(5) Absence on Account of Health [§ 359] p 941

(6) Filing Claim or Notice on Removal [§ 360] p 941

(7) Character of Intent [§§ 361-362] p 942

(a) In General [§ 361] p 942

(b) Continuing Intent [§ 362] p 943

(8) Time of Forming Intent [§ 363] p 943

[29 C. J.] 777

d. Effect of Intent to Remove without Actual Removal [§ 364] p 943

3. Removal and Conveyance [§ 365] p 943

4. Offer or Unexecuted Intention to Sell [§ 366] p 944

5. Acquisition of New Homestead [§ 367] p 944

6. Change in Character or Use of Property [§ 368] p 945

7. Declaration of Abandonment [§ 369] p 945

8. Sale and Conveyance [§§ 370-374] p 945

a. In General [§ 370] p 945

b. Conveyance to Wife or for Her Benefit [§ 371] p 946

c. Conveyance as Security for Debt [§ 372] p 947

d. Invalid or Defective Deed [§ 373] p 947

e. Parol Sale Accompanied by Delivery of Possession [§ 374] p 947

9. Lease [ 375-376] p 947

a. In General [§ 375] p 947

b. Lease of Portion of Premises [§ 376] p 948

10. Use of Former Tract in Connection with New Residence Tract [§ 377] p 949

11. Miscellaneous Acts of Abandonment [§ 378] p 949

12. Abandonment of Business Homestead [§ 379] p 949

13. Power of Husband to Abandon Homestead without Wife's Consent [§§ 380-3802] P 950

a. View That He May [6 3801

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b. View That He Cannot [ 3802] p 951

D. Waiver [§§ 381-388] p 951

1. In General [§ 381] p 951

2. By Whom Made [§ 382] p 952

3. How Waived [§§ 383-388] p 952

a. In General [§ 383] p 952

b. By Contract [§§ 384-386] p 952

(1) In General [§ 384] p 952

(2) Mortgage Waiving Exemption [§ 385] p 953

(3) Joinder of Husband and Wife [§ 386] p 954

c. Implied Waiver [§§ 387-388] p 954

(1) In General [§ 387] p 954

For later cases, developments and changes in the law see cumulative Annotations, same title, page and note number.

(2) Failure to Object or Consent to Levy and Sale [§ 388] p 955
E. Operation and Effect of Waiver or Abandonment [§§ 389-3902] p 955
1. In General [§ 389] p 955

2. Special Waiver [§§ 390-3902] p 956

a. Rights of Person or Creditor Favored [§ 390] p 956

b. Rights of Other Creditors [§ 3902] p 956

F. Estoppel to Claim Homestead [§§ 391-401] p 957

1. By Deed [§ 391] p 957

2. By Record [§ 392] p 957

3. By Conduct [§§ 393-399] p 958

a. In General [§ 393] p 958

b. Inducing Belief That Homestead Has Been Abandoned [§ 394] p 958

c. Change of Selection [§§ 395-396] p 958

(1) After Encumbering Other Lands [§ 395] p 958

(2) After Representation Inducing Dealings [§ 396] p 959

d. Disclaimer [§ 397] p 959

e. Recognition of Superior Title [§ 398] p 959

f. Miscellaneous [§ 399] p 959

4. By Position Taken or Admissions in Judicial Proceedings [400] p 960

5. Estoppel of Either Spouse by Acts of the Other [§ 401] p 960

G. Forfeiture [§ 402] p 961

H. Evidence [$$ 403-410] p 961

1. Presumptions and Burden of Proof [$ 403] p 961

2. Admissibility [§ 404] p 962

3. Weight and Sufficiency [$$ 405-410] p 963

a. In General [§ 405] p 963

b. Declarations [§ 406] p 963

c. Duration of Absence [§ 407] p 963

d. Acceptance of Lease of Premises [§ 408] p 964

e. Voting at Place Other than Where Homestead Is Located [§ 409] p 964
f. Miscellaneous [§ 410] p 964

I. Findings [§ 411] p 965

J. Questions for Jury [§ 412] p 965

VII. PROTECTION AND ENFORCEMENT OR RIGHTS [§§ 413-469] p 966

A. Process or Other Proceedings against Which Exemption May Be Allowed [§§ 413-417] p 966 1. In General [§ 413] p 966

2. Levy of Attachment or Execution [§ 414] p 966

3. Execution and Judicial Sales [§§ 415-417] p 967
a. In General [§ 415] p 967

b. Foreclosure Proceedings [§ 46] p 967
c. Partition [§ 417] p 968

B. Establishment of Right [$$ 418-443] p 968

1. In General [§§ 418-419] p 968

a. What Law Governs [§ 418] p 968

b. Duty of Officer Making Levy [§ 419] p 968

2. Claim of Homestead [§§ 420-426] p 969

a. Necessity of Claim [§ 420] p 969

b. Persons Who May Make Claim [§ 421] p 970

c. Time for Making Claim [§ 422] p 970

d. Form, Requisites, and Sufficiency of Claim [§ 423] p 971

e. Notice and Filing of Claim [§ 424] p 971

f. Contest and Determination of Claim [§§ 425-426] p 972

(1) In General [§ 425] p 972

(2) Notice [ 426] p 972

3. Allotment and Appraisal [§§ 427-437] p 972

a. Necessity [§ 427] p 972

b. Jurisdiction [§ 428] p 973

c. Selection, Appointment, and Competency of Appraisers [§ 429] p 973

d. Powers, Duties, and Determination of Appraisers [§ 430] p 974

e. Report and Proceedings Thereon [§§ 431-434] p 975

(1) In General [§ 431] p 975

(2) Formal Defects and Irregularities [§ 432] p 975

(3) Approval, Setting Aside, and Reappraisal [§§ 433-433] p 976
(a) In General [§ 433] p 976

(b) Hearing on Objections [§ 4332] p 976

(c) Effect of Approval or of Setting Aside Reappraisement [§ 433]

p 977

(4) Review [§ 434] p 977

f. Operation and Effect [§§ 435-436] p 977

(1) In General [§ 435] p 977

(2) Collateral Attack [§ 436] p 977

g. Claiming Successive Exemptions [§ 437] p 978

4. Disposition of Property and Rights of Purchasers [§§ 438-443] p 978

a. In General [§ 438] p 978

b. Sale of Property Subject to Homestead Right [§ 439] p 978

[29 O. J.] 779

c. Retaining Property beyond Exemption on Payment of Excess [§ 440] p 979

d. Rights of Purchasers [§§ 441-443] p 979

(1) In General [§ 441] p 979

(2) Failure to Allot Homestead or Defective Allotment [§ 442] p 980

(3) On Sale Subject to Homestead [§ 443] p 981

C. Proceedings for Enforcement and Protection of Homestead Rights [§§ 444-469] p 981
1. Jurisdiction [§ 444] p 981

2. Right of Action for Denial and Infringement of Right and Defenses Thereto [§ 445]
p 982

3. Nature of Actions or Proceedings in Which Relief Granted [§§ 446-449] p 982
a. In General [§ 446] p 982

b. Injunction [§ 447] p 982

c. Bill in Equity to Set Aside as Cloud on Title [§ 448] p 983

d. Motions and Other Summary Remedies [§ 449] p 983

4. Time to Sue and Limitations [§ 450] p 983

5. Parties [ 451] p 983

6. Pleading [§§ 452-457] p 985

a. Right to Homestead [§§ 452-453] p 985

(1) Necessity for Averment [§ 452] p 985

(2) Requisites and Sufficiency [§ 453] p 985

b. Description of Premises [§ 454] p 986

c. Negativing Exceptions or Matters Amounting to Forfeiture [§ 455] p 986

d. Miscellaneous Averments [§ 456] p 987

e. Amendments [§ 457] p 987

7. Issues, Proof, and Variance [§ 458] p 987

8. Evidence [§§ 459-462] p 988

a. Burden of Proof and Presumptions [§§ 459-460] p 988
(1) Right to Homestead Exemption [§ 459] p 988

(2) Value [ 460] p 989

b. Admissibility [§ 461] p 989

c. Weight and Sufficiency [§ 462] p 990

9. Trial [§§ 463-466] p 990

a. In General [§ 463] p 990

b. Questions of Law and Fact [§ 464] p 990

c. Instructions [§ 465] p 991

d. Verdict and Findings [§ 466] p 992

10. Judgment [§ 467] p 992

11. Review [§ 468] p 993

12. Damages [§ 469] p 993

VIII. RIGHTS OF SURVIVING SPOUSE, CHILDREN, OR HEIRS [§§ 470-556] p 994

A. Surviving Wife [§§ 470-489] p 994

1. In General [§ 470] p 994

2. Occupancy by Head of Family [§ 471] p 995

3. Residence within State of Husband or Surviving Wife [§ 472] p 995

4. Indebtedness or Insolvency of Estate [§ 473] p 996

5. Conveyance during Coverture and Abandonment during Husband's Lifetime [ 474] p 996

6. Property in Excess of Certain Amount over Indebtedness [§ 475] p 997

7. Existence of Children [§§ 476-477] p 997

a. In General [§ 476] p 997

b. Existence of Minor Children [§ 477] p 997

8. Validity and Continuance of Marriage Relation [§ 478] p 997

9. Effect of Possession of Other Property [§ 479] p 998

10. Effect of Insanity of Wife [§ 480] p 998

11. Waiver, Release, or Bar [§§ 481-489] p 998

a. In General [§ 481] p 998

b. Antenuptial and Postnuptial Contracts [§ 482] p 998

c. Election to Take under Will [§ 483] p 999

d. Election between Homestead and Distributive Share [§ 484] p 999

e. Election between Homestead and Year's Support [§ 485] p 1000

f. Remarriage [§ 486] p 1001

g. Alienation after Husband's Death [§ 487] p 1001

h. Listing Homestead as Assets of Estate [§ 488] p 1002

For later cases, developments and changes in the law see cumulative Annotations, same title, page and note number.

i. Miscellaneous [§ 489] p 1002

B. Surviving Children [§§ 490-4972] p 1003 1. In General [§ 490] p 1003

2. What Children Entitled [§ 491] p 1004

3. Extent and Limits of Rights [§§ 492-497] p 1004

a. In General [§ 492] p 1004

b. Affected by Acts of Others [§ 493] p 1005

c. Affected by Their Own Acts [§ 494] p 1007

d. Affected by Collateral Judicial Proceedings [§ 495] p 1007

e. Affected by Curtesy or Dower [§ 496] p 1007

f. Rents and Profits [497] p 1008

4. Enforcement and Protection of Rights [§ 4972] p 1008

C. Surviving Husband [§§ 498-499] p 1009

1. In General [§ 498] p 1009

2. Waiver, Forfeiture, Release, or Estoppel [§ 499] p 1010

D. What Law Governs [§ 500] p 1010

E. Retroactive Operation of Statutes [§ 501] p 1011

F. Precedence of Other Claims [§§ 502-506]

1011

1. Debts of Decedent [§§ 502-504] p 1011

a. Debts Not Enforceable [§ 502] p 1011

b. Debts Enforceable [§§ 503-504] p 1012
(1) In General [§ 503] p 1012

(2) Mortgage Liens [§ 504] p 1013

2. Debts of Survivor [§ 505] p 1013

3. Rights of Heirs and Remainderman [§ 506] p 1014

G. Nature of Estate or Interest Transmitted [§§ 507-511] p 1014

1. In General [§ 507] p 1014

2. To Surviving Spouse and Children [§ 508] p 1015

3. To Constituent Member of Family [§ 509] p 1017

4. To Heirs [§ 510] p 1017

5. Incidental Rights [§ 511] p 1019

H. Property Subject to Appropriation, Nature, Amount, and Extent [§§ 512-5172] p 1019 1. Property Subject to Appropriation [§§ 512-514] p 1019

a. In General [§ 512] p 1020

b. Property Used as Family Residence [§ 513] p 1020

c. Property Not Impressed with Homestead Character during Decedent's Lifetime [§ 514] p 1021

2. Nature of Estate, Ownership, or Interest of Decedent [§ 515] p 1021

3. Allowance in Lieu of Homestead [§§ 516-5163] p 1022

a. In General [§ 516] p 1022

b. From Proceeds of Sale of Property [§ 5162] p 1022

c. From Other Lands [§ 516%] p 1023

4. Territorial Extent, Quantity of Interest, and Value [§§ 517-5171⁄2] p 1023

a. In General [§ 517] p 1023

b. Value [ 5172] p 1024

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J. Rights as Affected by Administrator's Sale [§ 526] p 1028

K. Proceedings for Selection, Setting Apart, and Protection of Rights [§§ 527-543] p 1028 1. In General [§ 527] p 1028

2. Necessity for Selection and Allotment [§ 528] p 1029

3. Jurisdiction [§ 529] p 1030

4. Proceedings in Which Right Asserted or Protected [§ 530] p 1030

5. Notice [ 531] p 1031

6. Parties [§ 532] p 1031

7. Petition or Application [§ 533] p 1032

8. Contest and Determination of Claim [§ 534] p 1033

9. Order or Decree [§ 535] p 1033

10. Duty to Allot and Method of Allotment [§ 536] p 1034

11. Operation and Effect of Assignment of Homestead [§§ 537-540] p 1034

a. In General [§ 537] p 1034

b. Withdrawing Property from Administration [§ 538] p 1035

L.

HOMESTEADS

c. Collateral Attack [§ 539] p 1035

d. Adjudication of Title [540] p 1036

12. Vacating and Setting Aside Allotment [§ 541] p 1036
13. Review [§§ 542-543] p 1036

a. Appeal [§ 542] p 1036

b. Certiorari [§ 543] p 1037

Protection of Rights by Redemption from Liens [§ 544] p 1037
M. Transfer or Encumbrance [§§ 545-548] p 1037

1. By Surviving Wife [ 545] p 1037

2. By Surviving Husband [§ 546] p 1038

3. By Surviving Child or Heir [§ 547] p 1039

4. Rights Acquired by Grantee or Purchaser [§ 548] p 1039

N. Partition [§§ 5482-551] p 1039

1. In General [§ 5482] p_1039

2. During Occupancy of Homestead Beneficiary [§ 549] p 1039
3. During Minority of Children [§ 550] p 1040

4. On Application of Heir or Devisee [§ 551] p 1040

O. Liability of Homestead for Debts of Decedent [§§ 552-555] p 1041
1. In General [§ 552] p 1041

2. After Termination of Homestead [§ 553] p 1042

3. Sale Subject to Homestead Rights [§§ 554-555] p 1042
a. Right to Sell Not Recognized [§ 554] p 1042
b. Right to Sell Recognized [§ 555] p 1043

P. Course of Descent of Homestead [§ 556] p 1043

CROSS REFERENCES
Administrator of homesteader as party to an appeal
see Appeal and Error § 507.
Allotment of homestead to:

Insolvent

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see Insolvency [22 Cyc 1334]. Wife on divorce see Divorce § 775. Allowance to surviving wife, husband, or children generally see Executors and Administrators §§ 758-874. Antenuptial agreement generally see Husband and Wife. Assets of decedent's estate see Executors and Administrators § 357.

Assignment for benefit of creditors, effect

518.

of see

Assignments for Benefit of Creditors §§ 148, 197, 269, Bankruptcy, effect of see Bankruptcy § 618 et seq. Constitutional law:

Class legislation see Constitutional Law § 865.
Impairment of obligation of contract see Constitu-
tional Law § 749.

Retrospective operation of statute see Constitutional
Law 781.

Self-executing constitutional provision see Constitu-
tional Law § 117.

Vested rights, impairment of see Constitutional Law §§ 505, 526, 564, 749.

Decedent's debts, sale of homestead to pay see Execu-
tors and Administrators § 1479.

Defect in vendor's title, homestead as see Vendor and
Purchaser [34 Cyc 14821.

Domicile by operation of law see Domicile § 8.
Dower:

Allotment of homestead see Dower § 378.
Effect of homestead exemption see Dower § 379.
Execution set aside for failure to set off homestead
see Executions § 664.

Executory contract to convey signed by husband alone
see Vendor and Purchaser [39 Cyc 1217].
Exemption of personal property:

In general see Exemptions 25 C. J. p 1.
In lieu of homestead see Exemptions § 12.
Federal court as bound by decisions of state courts see
Federal Courts § 189.

Fraudulent conveyance of homestead see Fraudulent
Conveyances §§ 66-72.

Homestead for occupancy during administration see
Executors and Administrators § 763.

"Homestead" used in a will see Wills [40 Cyc 1531].

[29 C. J.] 781

Insurable interest in homestead see Fire Insurance
§ 21.
Marshaling assets and securities, debtor possessing
homestead see Marshaling Assets and Securities [26
Cyc 933].
Mechanic's lien on homestead see Mechanics' Liens [27
Cyc 27].

Negotiable instrument containing waiver of homestead
see Bills and Notes
223.

Partition generally see Partition [30 Cyc 186].
Probate homestead see Executors and Administrators
§ 763.

Property subject to:

Attachment generally see Attachment §§ 350-395.
Execution generally see Executions §§ 42-113.

Public lands, homestead in see Public Lands [32 Cyc
831, 1240].

Receivership on claim of homestead see Receivers [34
Cyc 44].

Reformation of conveyance see Reformation of Instru-
ments [34 Cyc 960].

Removal of cloud see Quieting Title [32 Cyc 1322]. Resisting levy on homestead see Obstructing Justice [29 Cyc 1330].

Sheriff's liability as to levy and sale of homestead see Sheriffs and Constables [35 Cyc 1647, 1687, 1695, 1919].

Special assessment, liability of homestead for see Municipal Corporations [28 Cyc 1132].

Tax sale:

Divesting claim to homeştead see Taxation [37 Cyc 1474].

Redemption by homesteader see Taxation [37 Cyc
1383].

Usurious waiver of homestead rights see Usury [39
Cyc 1060].

Waiver of homestead in contract tainted with usury
see Usury [39 Cyc 990].

Widow's allowance:

Bar to acceptance of homestead see Executors and
Administrators §§ 810, 816.

Resort to homestead for see Executors and Adminis-
trators 802.

Widow's quarantine see Executors and Administrators
§ 764.
Writ of entry, judgment subject to homestead see
Entry, Writ of § 75.

I. DEFINITION

[1] A homestead is the dwelling house constituting the family residence, together with the land

upon which it is situated and the appurtenances connected therewith.1 The term "homestead" has

V.

1. U. S.-In re Owings, 140 Fed. | 125, 134, 45 AmR 654; Gregg v. Bost-kins, 47 Kan. 580, 28 P 606, 27 AmSR 739, 741; Watkins v. Little, 80 Fed. wick, 33 Cal. 220, 227, 91 AmD 637; 309; Bebb 321, 330, 25 CCA 438. Ala.-Jaffrey v. McGough, 88 Ala. 184, 76 Ackley v. Chamberlain, 16 Cal. 181, 344, 18 P 223; Morrissey v. Donohue, 648, 650, 7 S 333; Blum Crowe, 39 Kan. 342, 63 Ala. 235, 238. v. Carter, gous, 4 Cal. 268, 272, 60 AmD 606; AmD 516; Taylor v. Har- 32 Kan. 646, 648, 5 P 27. Ark.-Williams v. Dorris, 31 Ark. Cook v. McChristian, 4 Cal. 23, 26. 23 KyL 1775. Ky.-Garrison v. Penn, 66 SW 14, 466, 468; McKenzie Fla.-Brandils Ark. 155, 158; Tumlinson v. Swin- Oliver v. Snowden, 18 Fla. 823, 838, v. Murphy, 24 172, 176, 22 S 268, 63 V. Perry, 39 Fla. ney, 22 Ark. 400, 403, 76 AmD 432. 43 AmR 338. AmSR 164; Cal.-Keyes V. 322, 324, 34 P 722, 38 AmSR 296; 635, 45 NE 267. Cyrus, 100 Cal. Ill. Smith v. Dennis, 163 Ill.

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Ham v. Santa Rosa Bank, 62 Cal. Kan.-Linn County Bank v. Hop-Millard, 7 Minn. 513, 82 AmD 112.

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